an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I'm off to Argentina this afternoon, so I won't be posting for the next two weeks. (No great loss.) But I do want to offer one final comment on the Grand Bargain that was just inflicted on it. Put to one side that it represents, as Joe Nocera aptly argues in today's NYTimes, the submission basically to terrorist threats by a remarkably feckless President. And put to one side that it almost guarantees the worsening of the American (and therefore the world) economy, though it may brighten the prospects of a Republican victory over the feckless President, apparently the only thing that Mitch McConnell is really committed to as he winds up his long and decidedly non-illustrious career in the Senate.
Rather, I want to elaborate the theme of several earlier posts, which is the way that changes in the American political regime occur. From one perspective, of course, the House Republicans behaved no worse than did earlier Republicans, in 1865, who refused to seat the elected Senators and Representatives from the defeated so-called Confederate States, whose governments had been accepted by President Andrew Johnson and whose votes to ratify the Thirteenth Amendment were accepted by Congress. I.e., each band of Republicans took advantage of the legal possibilities open to them and played a decided form of "constitutional hardball." And, of course, full representation of the defeated Southern entities (or whatever you wish to call them) was made contingent on their ratifying the Fourteenth Amendment. If one defends the earlier group of Republicans, as I most certainly do--including the impeachment of the egregious Andrew Johnson--it is on the basis of agreement with their political agenda, which was regime change in the defeated Confederacy. They failed, of course, and the Compromise of 1877 returned the defeated Confederacy to the white ruling class for another 100 years. (Something that should be taken into account by those who are trumpeting the overriding virtue of "compromise" in all cases. There are times when lines should be drawn in the sand.)
So if one wants to denounce the House Republicans today as terrorist thugs, it can only be because on disagrees with their political agenda, as I do. If one shares their agenda, and their sense of concern about the "debt crisis," then they behaved perfectly properly. In any event, one can assume that we will see in the future ever more taking advantage of any and all legal possibilities to get one's way, including the de facto holding America hostage in order to get one's way.
But even more telling with regard to regime change is the further diminution of Conress as a serious law-making or deliberative body. (Nothing new here; Carl Schmitt would certainly understand how and why that has happened.) We are to be effectively governed in the next several months by the new super-duper committee of six Republicans and six Democrats who will be able to propose fast-track budget cuts (or, in theory but not in fact, tax increases) that Congress must vote up or down on, with no possibility for amendment. Lest one compare this to other fast-track procedures, such as the base-closing commissions and the like, note that the failure of Congress to acquiesce to the wishes of their new masters will lead to killing the hostages, in this case automatic budget cuts in defense and in programs involvng the vulnerable. As I wrote yesterday, this literally makes no sense IF one believes that our current defense budget makes sense (and, of course, if one is a bleeding heart who believes that the suffering should receive help instead of being left to their own prospects in a Darwinian free market). This is not the way a serious Republican Form of Government operates. It is the way a "constitutional dictatorship" takes further (and suitably complext) form. In any event, political terrorism will have been "normalized."
In this context, I'm happy to echo the words of a Texas Republican Representatives, Michael C. Burgess: "I hate it, I hate it, I hate it with a passion.” This comes, suitably enough, from a story in today's Times on how "Lawmakers in Both Parties Fear that New Budget Panel Will Erode Authority." Yes, indeed. It represents a new version of "delegation run riot," though this time the delegation is not to the Executive Branch, but, rather, to an insider's club of less than 5% of the entire Congress, whose members will be appointed by the Speaker, the House Minority leader (Nancy Pelosi), and the Senate majority and minority leaders, with, one presumes, no formal approval by the House or Senate itself. Why would anyone who has any lingering belief in democracy, representative government, or a Republican Form of Government believe this is a good idea? Posted
by Sandy Levinson [link]
I cannot get all that upset about Congress delegating responsibility to draft a budget to the new "Gang of 12" committee as opposed to its usual practice of going through the appropriations and budget committees. Indeed, the fact that this committee is split evenly between the parties lessens the chance of secret game playing in a majority party run committee.
What is being left unsaid is that every out-year budget recommendation by the new committee will be enhanced or reversed by a future Congress. Indeed, the FY 2012 budget to be enacted next month will likely change the cuts in this bill starting this October.
Thus, the only parts of the current debt ceiling bill that matter are the added debt and any immediate cuts in spending. All the rest is a kabuki dance.
Suppose the Gang of Twelve deadlocks 6-6, a definite possibility given the statements by Pelosi and McConnell? The next logical step would be to delegate the entire mess to a Debt Czar who would have absolute power to dictate spending & tax policy. Given that the legislative branch of the Federal Government now enjoys a 14% approval rating, this just might be a popular move.
Given that Congress has already essentially abdicated its most important responsibility -- deciding whether or not the country goes to war -- it's only a matter of time before all the rest of its responsibilities get fobbed off on the executive branch. Congress critters are deathly afraid of just one thing -- being blamed -- and there's no way to avoid being b lamed if you actually, you know, vote for or against things.
It does seem to resemble the 1860s and 70s when the Radical Republicans were trying to make sure that the traitorous south be held accountable for its actions and there was a president in the White House who went along with the traitors against the best interests of the country.
And how fitting the Compromise of 1877 settled an election that was based on coercion in the south where the return boards held the power of counting the votes and refused to do anything unless the black union soldiers were removed from their states so that the former confederates could govern as they pleased without interference.
By allowing the traitors to get their own way back then, and by allowing their descendants to arrogantly refuse to acknowledge the authority of the court during the Second Reconstruction through massive resistance, we signaled to the rebel element that they'll get whatever they want if they just hold their breath long enough or if they throw enough tantrums, like the Brooks Brothers riot in Miami in 2000.
A thorough housecleaning is in order but I doubt it will happen in my lifetime.